Alito and Death (and Race)

Professor Goodwin Liu of UC Berkeley Law School has a devastating analysis of Supreme Court nominee Samuel Alito capital punishment jurisprudence in today's Los Angeles Times entitled "Life and Death and Samuel Alito." Liu points out that while most of the media attention has been paid to Alito's views on abortion, death penalty cases make up a much more significant portion of the Supreme Court docket each year, and that from 2000 to 2005 the Court decided only three cases on abortion (the most notable being Stenberg v. Carhart, 2000, voiding Nebraska's "partial birth" abortion ban). In the same period the Court decided more than three dozen cases involving the death penalty. As Professor Liu puts it more eloquently than I could paraphrase: "In this area, the Supreme Court often serves not only in its typical role of deciding unsettled questions of broadly applicable law but also as a court of last resort to correct errors and prevent injustice in individual cases. [And c]apital cases are often fraught with error."

Samuel Alito has been on the 3rd Circuit Court of Appeals for 15 years (since age 40!) and has participated in 10 death penalty cases. Half of these were unanimous decisions from randomly selected 3-judge panels that he participated in. However, in each of the remaining five cases Alito voted against the inmate (and thus for their death) and issued a separate opinion which often revealed a strong difference of opinion between him and his judicial colleagues and a concrete (some might say "cramped") philosophy in capital punishment cases.

Although Professor Liu details the flaws in Alito's opinions in the other four cases, it is the details of the 2001 Riley v. Taylor case which particularly caught my attention.

In 2001, Alito sided with the state against a black man, James Riley, convicted of capital murder by an all-white jury in Kent County, Del., whose population is 20% black. Before trial, the prosecutor had struck all three prospective black jurors from the jury pool. Riley challenged this action as racially discriminatory. His evidence included the fact that the prosecution had struck every prospective black juror in the three other capital murder trials in Kent County within the prior year.

Alito refused to infer racial discrimination from this pattern, offering the following analogy: "Although only about 10% of the population is left-handed, left-handers have won five of the last six presidential elections…. But does it follow that the voters cast their ballots based on whether a candidate was right- or left-handed?" A majority of the full court disagreed with Alito, criticizing his logic for "minimiz[ing] the history of discrimination against prospective black jurors and black defendants."

Earlier this year, the Supreme Court granted relief to another black man convicted and sentenced to death by a jury drawn from a panel where the state had struck 10 of 11 qualified black jurors. In an opinion joined by Justice O'Connor, the court said — contrary to Alito's reasoning in the Riley case — that the exclusion of such a large percentage of black jurors cannot be viewed as "happenstance."

Yes, ladies and gentleman. Alito analogized race to handedness, and revealed a shocking lack of understanding of statistics as well as a stunning lack of compassion for the real-world implications and impact of his judicial decisions. Kudos to the Los Angeles Times for printing Professor Liu's editorial. Go read the whole thing!